From tutored witness to motive, Allahabad HC has many questions for CBI in Aarushi-Hemraj murder case

In its 273-page order, the bench of Justices B K Narayana and A K Mishra described as “illegal” the conclusion reached by Additional Sessions Judge Shyam Lal in his November 2013 order that held the Talwars guilty of murder.

Written by Sarah Hafeez , Aniruddha Ghosal | New Delhi/allahabad | Updated: October 13, 2017 10:38 pm
aarushi hemraj murder case, 2008 aarushi hemraj murder case, talwars, talvar, 2008 noida double murder, rajesh nupur talwar, tawars acquitted, allahabad high court File photo of dentist-couple Nupur Talwar and Rajesh Talwar, who were on Thursday acquitted by the Allahabad High Court in the twin murder case of their daughter Aarushi and domestic help Hemraj. PTI Photo

Ordering the release Thursday of Rajesh and Nupur Talwar, who were sentenced to life imprisonment four years ago by a Ghaziabad trial court for the murder of their teenaged daughter Aarushi and domestic help Hemraj in May 2008, the Allahabad High Court said “suspicion, however grave it may be, cannot take the place of proof,” and, in this case, neither the circumstances nor the evidence was enough to hold them guilty.

In its 273-page order, the bench of Justices B K Narayana and A K Mishra described as “illegal” the conclusion reached by Additional Sessions Judge Shyam Lal in his November 2013 order that held the Talwars guilty of murder. The trial court conclusion, the bench said, was “vitiated by non-consideration of material evidence on record”.

The High Court underlined the loopholes, the several gaps in the prosecution’s case against the Talwars. Consider these:

Motive: ‘Grave, sudden provocation theory’

The 2013 order maintained that the “motive of commission of the crime (had) been established”.

The High Court said “there is not even an iota of evidence on record even remotely suggesting either Hemraj was assaulted in Aarushi’s bedroom or of any sexual activity between the deceased” and “the prosecution has failed to prove by any reliable or cogent evidence, the motive suggested”.

The motive of the discovery of a sexual relationship, the High Court said, was based “entirely” on the “crime scene analysis and reconstruction report” prepared by Dr M S Dahiya, which in turn was based “entirely upon his personal analysis and incorrect information supplied to him by… CBI” that Hemraj’s blood had been recovered from Aarushi’s bedroom.

The High Court said Dr Naresh Raj and Dr Sunil Kumar Dohre, who conducted the post-mortem examinations, “committed medical blasphemy in supporting the prosecution case of sexual intercourse and consequent grave and sudden provocation theory”. During the 2013 trial, Dr Dohre had submitted that Aarushi’s private parts had shown signs of being cleaned after death.

*Talwars were ‘awake through the fateful night’

The trial court order said that “Internet remained active on the night of the gory incident, suggesting that at least one of the accused remained awake” and noted there was no power disruption. It said Aarushi’s bedroom, where she was found murdered, was separated only by a “partition wall” from her parents’ bedroom.

The High Court said the CBI’s own evidence rejected the version of events that the Talwars “knew nothing”. “The explanation that the appellants knew nothing as they were sleeping cannot be termed as no explanation and/or false explanation as from the evidence adduced by the CBI itself it was proved that if someone was sleeping in the Talwars’ bedroom with the air-conditioners on which were a bit noisy, it was not possible for them to have heard the sounds of moving footsteps, closing and opening of doors inside the Talwars’ flat. Thus, the trial court, in our opinion, committed a patent error of law in holding that the appellants were awake throughout the fateful night.”.

The bench said “it is not conclusively established that Internet activity noticed in the flat of the Talwars in the intervening night of 15th/16th May, 2008 was as a result of manual operation”.

*Main door not locked from outside

The 2013 trial court order said “on the morning of 16th May 2008 when the maid (Bharti Mandal) came to the flat… a false pretext was made by Dr Nupur Talwar that door might have been locked from outside by the servant Hemraj although it was not locked or latched from outside”.

The High Court said the testimony of Bharti Mandal, “ a tutored witness”, was “thoroughly insufficient for establishing the prosecution case that Talwar’s household was locked from inside in the morning hours of 16.5.2008 at around 6:00 AM… suggesting that there was no possibility of any outsider accessing the apartment in the fateful night.”

The bench said Mandal was “a tutored witness and whatever incriminating facts were stated by her in the Court for the first time were taught/explained to her. Her testimony, therefore, is fraught with serious suspicion”.

* No outsider

The trial court order said there was “nothing to show that an outsider(s) came inside the house in the said night after 9.30 pm”. It pointed to three other crucial points of evidence— “no person was seen loitering near the flats in suspicious circumstances on that night”, there was “no evidence of forcible entry of any outsider(s) in the flat on the night of occurrence” and “no evidence of any larcenous act in the flat”. It also said it was impossible for an outsider to commit the murders and then “muster courage to take Scotch whisky knowing that the parents of the deceased Aarushi are in the nearby room. His top priority will be to run away from the crime scene immediately.” The trial court also noted that there was “close proximity” between the time of the four being seen alive and the murder and said “the time is so small that possibility of any other person(s) other than the accused being the authors of the crime becomes impossible”.

The High Court disputed this. “The chain of circumstances stood snapped the moment the prosecution failed to prove by any cogent and reliable evidence that the appellants’ flat was locked from inside when PW10 Bharti Mandal rang the door bell of their flat in the morning of 16.05.2008 and a strong possibility of outsiders having accessed into the appellants’ flat and left after committing the double murder.”

“We do not find any reason to fasten the appellants with the guilt of double murder merely on the proof of the deceased being last seen alive with the appellants in their flat… specially in view of the alternative hypothesis of the double murder covenanted in the prosecution case itself.”

* Murder weapon: Golf club and scalpel

Before the 2013 trial court order, the CBI had argued that two golf clubs were cleaner than the others in the set that Rajesh Talwar handed over to police, indicating that these had been cleaned. The order noted “that golf club No. 5 was thrown in the loft after commission of the crime and the same was produced after many months by accused Dr Rajesh Talwar.” It noted that the “pattern of head and neck injuries” could be “caused by golf-club and scalpel” and that Rajesh Talwar was a “member of the Golf Club, Noida and golf clubs were produced by him” while both “were dentists by profession”.

The High Court said there was “no cogent or reliable evidence on record to persuade us to believe that golf club No. 5 was the crime weapon. No blood or DNA was found on any of the golf clubs. Thus we do not find that the prosecution has been able to prove that golf club and surgical scalpel were the crime weapons which were used by the accused-appellants for committing the double murder.”

It noted that the “theory of golf club and surgical scalpel being the crime weapon is based wholly upon the information made available to him in the questionnaire supplied to him by A G L Kaul, Investigating Officer, which has hardly any legal sanctity. Moreover, neither the post mortem of Aarushi nor that of Hemraj mentions any injury of triangular shape.”

* Not weeping, no blood stains, lack of spontaneity

The 2013 order said that Bharti Mandal had “nowhere stated that when she came inside the flat both the accused were found weeping”. It also highlighted absence of bloodstains on the clothes of the Talwars and said “the clothes of both the accused were not found soaked with blood. It is highly unnatural that parents of deceased Aarushi will not cling to and hug her on seeing her murdered.” It cited Bharti Mandal’s testimony and said when she reached the flat, Nupur Talwar had not “complained about the murder of her daughter”, rather “told the maid deliberately that Hemraj might have gone to fetch milk. after locking the wooden door from outside.” This lack of spontaneity is relevant under Section 8 of the Evidence Act, the trial court said.

The High Court said that it was “unable to agree with the submission” and said “different persons react differently in a given situation”.

* The terrace and dressed-up crime scene

The 2013 order noted that Hemraj’s body was “found lying in a pool of blood on the terrace… and the door of terrace was found locked from inside.” Further, the terrace door “was never locked prior to the occurrence” and the Talwars “did not give the key of the lock to the police despite being asked to give the same.” It also said that no outsider would “take the body… to the terrace” and an outsider wouldn’t “dress-up the crime scene”.

The High Court dismissed the theory that Hemraj’s body had been hidden. “The prosecution theory that the appellants had hidden the dead body of Hemraj on the terrace of their flat is patently absurd and improbable as it contemplates an assumption that the appellants had hidden the dead body on their terrace with the intention of disposing of the same upon getting a suitable opportunity which is based upon an impossible hypothesis that Noida police would not find the dead body on the terrace on 16.5.2008 itself.” It said the CBI had “miserably failed to lead any evidence which may even remotely suggest that Hemraj was murdered in the bedroom of Aarushi and then his dead body was wrapped in a bed sheet and dragged from Aarushi’s bedroom upto the terrace”.

The Noida police didn’t find the body due to “negligent and callous approach”. It said “non-breaking of the terrace lock door was not on account of non-availability of the key of the terrace door but due to the negligent and callous approach of the Investigating Officer of the case”.

The prosecution had also highlighted that the flat had been washed soon after Aarushi’s murder. The High Court said there was no evidence “indicating that either the Noida police or the CBI… either instructed or issued any notice in writing to the accused-appellants prohibiting any physical or structural alteration in the apartment”.

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